B.U. Wahane, J.
1. The appellant/accused Sanjay Ramchandra Tarare, preferred this appeal under section 374(2) of Criminal Procedure Code, challenging the impunged judgment and order passed by the Additional Sessions Judge, Nagpur, in Sessions Case No. 746/90, convicting him for the offence punishable under section 302 I.P.C. and sentencing him to suffer imprisonment for life.
2. The facts in brief are succinctly summarised as under :
The appellant Sanjay was running a hotel near Kamal Talkies Chowk, Nagpur, named as 'New Saoji Bhojnalaya' as also running a Tea Stall in the same premises. In front of his hotel, at a distance of about 60' towards north near the electric Pole No. N/108-A, the deceased Manoj son of Damaji Gajbhiye had a eggs stall on hand-cart. Between the two, there is a North-south tar road measuring 12' in width. This position is shown in exh. 16-the Spot Panchnama recorded by Police on 3rd September, 1990, Deepak s/o Pralhad Dembe had a fodder shop named 'Prakash Katiya Bhandar'. The fodder shop was 10' away from the eggs stall. According to the prosecution, deceased Manoj had started his eggs stall since two days before the alleged incident which took place on 2nd September, 1990 at about 7 P.M. Chandramani (P.W. 4) a young boy of 12 to 13 years, was working with deceased Manoj at the eggs stall on daily wages of Rs. 5/- to Rs. 10/-.
3. On 2-9-1990 at about 7 P.M., while deceased Majoj and Chandramani were at the eggs stall as usual, the accused had come to the stall and asked for omelet. Omelet was prepared and served. He consumed the same. Deceased Manoj demanded money. The accused refused to pay. Consequently, altercation ensued between the accused and the deceased. During the altercation, the accused asked Manoj that he should not put his eggs stall there. The accused took out the knife from his waist and dealt blows on the chest and abdomen of the deceased. Deceased Manoj tried to run away but after crossing few paces, he fell on the ground. The accused ran away. Mahendra son of Damaji (P.W. 1) elder brother of deceased Manoj, who witnesses the incident, immediately rushed to his brother, put him in the rickshaw and took him to Panchpaoli Police Station. The condition of injured Manoj being serious, without wasting time, he was removed to Mayo Hospital. Mahendra (P.W. 1) returned back to Panchpaoli Police Station, Nagpur, and lodged report exh. 39. On prescribed form it is at exh. 66. Police registered an offence punishable under section 326 of the Indian Penal Code against the accused vide Crime No. 477 of 1990.
4. P.W. 11 Manohar son of Ramu Waghulde, Police Head Constable, recorded the dying declaration of Manoj vide exh. 50. The condition of injured Manoj being serious, he was immediately taken to the Operation Theatre. Dr. Seems Sahay Sexena (P.W. 8) examined the patient in the Operation Theatre and found following injuries :
(1) Stab wound 4th intercostal space, left midclavicle line, 1' x 1' penetrating into thoracic cavity, acute bleeding present, clean cut.
(2) Stab wound on the epigastria region. 1' x 1' penetrating into thoracic cavity, edges clean cut, acute bleeding, visceral prolapse.
(3) Stab wound on right hand over all the fingers except over middle phalanx 1/2' deep, edges clean cut.
According to the doctor, there were some other injuries besides these injuries, but she did not note them in view of the urgency. The operation was performed by Dr. Madhao Shende, Associate Professor. Dr. Shende too noticed the following injuries :
(1) Stab injury 1' x 1' on the 4th intercostal space left midclavicle line, penetrating into the thoracic cavity with acute bleeding.
(2) Stab wound on the abdomen, 1' x 1' with visceral prolax.
(3) A stab injury on the right hand on the palm over the fingers 1/2' in deep.
Dr. Shende deposed that he did not try to find other injuries as he was more concerned with the injuries on the intercostal space and the injury on the abdomen which were stab wounds as they needed immediate attention.
According to Dr. Shende, the injuries on the chest and the abdomen were on the vital parts of the body. The injury on the left side chest was a stab wound penetrating into the heart through lung and, therefore, this injury was sufficient in the ordinary course of nature to cause death. The injury on the chest and the abdomen were caused by the sharp cutting instrument as article 3 knife.
Dr. Seema Sexena (P.W. 8) also deposed that the external injury No. 1 i.e. the stab wound on the 4th intercostal space, i.e. on the chest was sufficient in the ordinary course of nature to cause death. She further deposed that the knife article 3 could have caused the injuries described by her in exh. 55.
5. Dr. Anand Dongre (P.W. 3), Associate Professor in Forensic Medicine, 1. G. Medical College, Nagpur, performed autopsy on the dead body of Manoj on 3-9-1990 between 1.30 to 3.00 P.M. According to him, it was the dead body of male aged 22 years. Dr. Dongre found the following external injuries :
(1) Libratory wound on abdomen and lower chest wall of left side which was as surgical would, involving the stab wound of epigastria region, as per bad head ticket, Incision was 14' in length and stitched. Incision was midline of upper abdomen and thorasi region passing through 6th intercostal space upto anterior auxiliary line of left side.
(2) Stitched wound on left side chest in 4th intercostal space 2 1/2' lateral to mid-line of body. On opening i.e. removing stitches there was a stab wound obliquely placed 1 1/2' x 1/2' x cavity deep directed medially and downward wedge shaped.
(3) Stitched wound on mid auxiliary line in 4th intercostal space left side 15' away from midline of body. On removing stitches there was a stab wound 1 1/2' x 1/2' x cavity deep obliquely placed, directed medially and forward, wedge shaped.
(4) Incised wound on right side back 2 1/2' below from anterior border of scapula and 4 1/2' lateral to mid line of back, 1' x 1/4' x skin deep vertically placed.
(5) Incised wound on right side finger of index and middle finger 1/4' above upper border of palm, horizontally placed, 1' x 1/2' x bone deep.
According to Dr. Dongre, the external injury Nos. 2, 3, 4 and 5 were caused by single edged pointed weapon and injury No. 1 was also caused by the same weapon. On internal examination, Dr. Dongre found the following injuries :
(1) Pleura was cut on account of external injuries Nos. 2 & 3.
(2) Upper lobe of left lung was cut through and through 1' x 1/2' through and through which was corresponding to injury No. 2.
(3) Right artery of heart was cut obliquely 1/2' x 1/2' x 1/2' which was corresponding to external injury No. 2.
6. According to Dr. Dongre, the cause of death was an injury to the vital organs namely lung and heart. According to him, the cause of death was external injury No. 2 i.e. wound on the left side of the chest in 4th intercostal space coupled with the internal corresponding damage. According to him, this injury was sufficient in the ordinary course of nature to cause death. These injuries were ante-mortem. On seeing the knife article 3, he deposed that the injuries could have been caused by this weapon. Exh. 43 is the post-mortem notes.
7. On 3-9-1990 at 11 A.M., in presence of Panchas, Shri B. J. Jadav (P.W. 12), visited the spot of incident and drew the spot panchnama : The blood stained earth and plain earth from the spot collected in two separate packets. The spot panchnama drawn is at exh. 16.
On 3rd Sepatember, 1990, the accused was arrested and arrest panchnama was drawn. On the very day, in presence of panchas, the appellant/accused volunteered to point out the knife which he had concealed. A memorandum exh. 54 was drawn to that effect. In pursuance to the statement, the accused led the Police party and the panchas to his house and after opening a Godrej cup-board, he took out a knife and produced the same before the Police party. The said knife was seized vide seizure panchnama exh. 55. On 4-9-1990 in the search of the house of the accused, the police found his blood stained clothes-articles 6 and 7 in the cup-board and they were attached under panchnama exh. 57. On being asked to I.O. as to why he did not ask the accused about the clothes on 3-9-1990, the Investigating Officer said that it did not strike him at that time.
8. On 5-9-1990, the appellant/accused was referred to Mayo Hospital to collect his blood. The blood of the accused was collected and the sealed bottle containing the blood sample was attached by the Police under panchnama exh. 31. During the investigation, the clothes of deceased Manoj were also attached under the panchnama exh. 2. The clothes of deceased and the knife article-3 recovered from the accused were sent to Dr. Dongre (P.W. 3). After examining the clothes of the deceased; and the knife, Dr. Dongre opined that the cut-marks on the clothes and the injuries on the person of deceased Manoj could have been caused by the knife-article 3. Doctor's opinion is at exh. 33. All the incriminating articles seized during the investigation were sent to the Chemical Analyser vide requisition exh. 35. The Chemical Analyser's reports are marked as exh. 64 and exh. 65. According to the Chemical Analyser's report, the blood of deceased Manoj was Group 'B' and the blood group of accused is 'A'. According to the Chemical Analyser's report, the Full-pant and Manila of accused i.e. articles 6 and 7 (These articles are marked as articles 4 and 5 in the C.A. report), were stained with human blood of group 'B'. After the investigation was complete, the chargesheet was filed against the appellant/accused in the Court of C.J.M., Nagpur, who committed the same to the Sessions Court for trial.
9. The charge was framed and explained to the accused vide exh. 8, to which the appellant/accused pleaded not guilty. The defence of the accused is of total denial. According to the appellant, he was falsely implicated in this case though he is innocent.
10. To substantiate the charge levelled against the appellant/accused, the prosecution examined four eye witnesses viz. (1) P.W. 1 Mahendra-elder brother of deceased Manoj, (2) P.W. 2 Deepak s/o Pralhad Dumbe-owner of the fodder shop 'Prakash Katiya Bhandar', (3) P.W. 4 Chandramani s/o Dharamdas Gajbhiye, 13 years old boy who was working with deceased Manoj and (4) P.W. 6 Sudam s/o Daulat Meshram - a rickshaw puller.
Besides the eye witnesses referred to above, the prosecution led circumstantial evidence to bring the guilty home.
11. The learned Addl. Sessions Judge, Nagpur, examined the case under two broad heads. The first was the evidence of the eye witnesses and the second the circumstantial evidence in the shape of discovery of blood stained knife-article 3 and blood stained clothes of the accused, supported by the evidence of doctors. The learned trial Judge, after evaluating the evidence led by the prosecution, considered the following ocular and circumstantial evidence to arrive at the conclusion that the appellant/accused committed the murder of deceased Manoj.
(1) Believed all the four eye witnesses.
(2) The F.I.R. which came to be lodged immediately after the incident i.e. at 7.20 P.M., discloses the assault by knife and also the name of the assailant.
(3) Discovery of the knife article 3.
(4) Seizure of blood stained clothes of the accused from his house and the knife (article 3) and the clothes of the accused (articles 6 and 7) were found stained with human blood of group 'B'. The blood group of deceased, according to the Chemical Analyser, was 'B', which the blood group of accused is 'A'.
(5) Blood was found on the spot. Blood mixed earth and the simple earth was attached from the place of occurrence.
(6) Doctors (P.W. 3, P.W. 7 and P.W. 8) opined that the injuries, they noticed, on the person of deceased Manoj, could have been caused by the knife article 3. According to the doctors, the injuries on the chest and the abdomen of deceased accused were on vital parts and the injury on the chest only was sufficient to cause death in the ordinary course of nature.
12. Shri Daga, the learned counsel for the appellant/accused assailed the findings of the learned trial Court on the ground that P.W. 4 Chandramani was not present on the spot at the time of assault, probably he might have gone to some other shop to serve omelet to other customers. Secondly, the statement of this child witness came to be recorded by the Police on 7th September, 1990 and thus, there is a delay of five days. He was not inclined to depose and, therefore, according to the learned counsel, he was tutored by Mahendra-the brother of deceased. There is no corroborating to his testimony on the point that the accused had been to the eggs stall of deceased Manoj, demanded omelet and consumed the same.
According to the learned counsel for the appellant, P.W. 1 Mahendra-the elder brother of deceased and P.W. 6 Sudam are the got up witnesses. As regards the evidence of P.W. 2 Deepak, it is submitted that as he had gone home earlier, he did not return and, therefore, did not see assault on Manoj.
13. The facts which are not in dispute, are that the deceased Manoj had started eggs stall since about two days prior to the day of incident, and the said stall was installed across the road but in front of 'New Saoji Bhojnalaya' of the appellant/accused. P.W. 4 Chandramani, a boy of 13 years, was working with deceased Manoj. The arrest of the appellant/accused and the collection of his blood sample is also not in dispute.
14. According to Shri Daga, the learned counsel for the appellant/accused, the evidence of a child witness, as a rule of law, cannot be believed though he is a competent witness. The rule of prudence requires that the Court should examine the evidence of a child witness with caution because the child witness has a notoriously good memory and sometimes are influenced by the urge of attaining notoriety by making out impressive versions even about those things which they have not witnessed and are persuaded to depose about. The evidence of a child witness cannot be accepted without independent corroboration.
With the assistance of Shri Daga, the learned counsel for the appellant/accused, we have perused the evidence on record. From the evidence of Chandramani (P.W. 4), certain aspects have been brought to our notice i.e. he is a tutored witness and has deposed at the instance of Mahendra (P.W. 1) the elder brother of deceased Manoj, His deposition was recorded in the question and answer form. The witness was asked by Mahendra as to whether the murder of deceased Manoj was committed in his presence. Upon saying 'Yes', he was taken by Mahendra to the Police Station and the Police recorded his statement. However, we found Chandramani a straight forward witness who without any hesitation answered the query made by Mahendra. The boy specifically deposed that the murder of Manoj was committed in his presence. He further deposed that after his disclosure about murder, he was taken to the Police Station, but his statement was not recorded by the police, writer being not available. According to this witness, his statement was recorded by the Police either on 6th or 7th of September 1990. Again a question was asked to the witness to the effect that 'Had you a talk with Mahendra about this case before going to Police Station ?' and the witness answered 'Yes'. However, another question was put to him that 'Mahendra had tutored you as to what statement is to be given before the Police ?' The boy answered 'No.'
15. The provision of Section 118 of the Evidence Act clearly lays down that the child is competent to testify provided he understands the questions put to him and gives rational answers to those questions. Age of the witness was 13 years. From the answers given by Chandramani, the trial Curt found him of matured understanding and knowing the significance of the oath and the necessity to speak the truth. Hence oath was administered to him. There is no quarrel over the preposition that child witnesses are easily susceptible to tutoring and to telling imaginative stories and therefore, their evidence be scrutinized with extreme care and caution before being acted upon as true and dependable. Thus, for appraising the evidence of a child witness, the first test is whether there is any evidence of tutoring. If some stretches suggest of tutoring, unless, the evidence of child witness is corroborated in material particulars, connecting the accused with the crime, not safe to lay trust on a serious charge like murder. In other words, all that is required is that there must be some additional evidence, though need not be direct evidence, rendering it probable that the story of the child witness is true and it is reasonably safe to act upon it. The trial Court conceded that the evidence of Chandramani was not marred by any material discrepancy or contradiction. The trial Judge had an opportunity to see and hear the boy and, from the answers given by him to the questions put to him in the Court, he was found to have given cogent answers as expressed in the judgment of the trial Judge who observed the demeanour of the witness while giving evidence in the Court. A perusal of his evidence shows that he has certainly attained measure of mature understanding. On careful scrutiny, we find that a boy of tender age confronted or is subjected to a long detailed searching cross-examination, successfully stood like a rock unshaken. Nothing could be elicited from him to make his testimony unworthy of credence.
Chandramani being working with deceased Manoj, his presence on the spot of incident is natural. Evidence of Chandramani is to be discussed. The substantive evidence of Chandramani is to the effect that the accused came to the eggs stall, demanded omelet which was served. The accused consumed the same and on demand of money, he denied to pay and thus, there was exchange of words. The accused took out knife from his waist and dealt blows on the chest and stomach of the deceased who ran some distance and then fell on the ground. His brother removed him to the hospital.
Shri Daga, the learned counsel for the appellant, suggested to this witness during the cross-examination that when the incident of assault took place, he was not present there as he had been to nearby shops for delivering raw-eggs. Chandramani denied the suggestion. Mere suggestion will not take the place of proof and, therefore, there is no circumstance to suggest the Chandramani was not present when the quarrel and assault took place. Giving conscious thought to the evidence of Chandramani, according to us, the witness Chandramani was neither tutored nor got up witness and thus, not tainted one. We do not find any material contradictions or serious infirmities affecting his evidence, to brand him as a false or a tutored witness. Though patently a young boy of 13 years of age, has emerged from long and protracted cross-examination as a truthful witness and nothing of any significance could be elucidated from him which would in any way detract from the massive weight of testimony. We endorse the opinion of the learned trial Judge.
A lad of 13 years who had attained the measure of mature understanding, cannot be treated as a child witness, has been held by the Lordships of the Supreme Court in the case of Tehal Singh v. State of Punjab, : 1979CriLJ1031 .
The presence of Chandramani at the spot of incident, is verified by the evidence of Deepak (P.W. 2) who was running 'Prakash Katiya Bhandar' as the neighbour of the sport of incidence. P.W. 1 Mahendra the elder brother of deceased, P.W. 6 Sudam who took Chandramani to the house of deceased Manoj on cycle on his request and also Chandramani identified the knife Article 3 which was used by the appellant/accused in the assault. His evidence also finds support from the medical evidence. Thus, the evidence of Chandramani is corroborated in all material particulars connecting the appellant with the crime in question.
The defence tried to build the mountain out of the mole hill by finding fault to the effect that there is no corroboration to the evidence of Chandramani regarding the story of omelet taken by the accused and denial of its payment. According to Mahendra, on 2-9-1990, while passing through the Kamal Talkies chowk on his bicycle after purchasing vegetables, he saw the accused, Manoj and Chandramani at the eggs stall of his brother Manoj. Haulted, noticing some gathering there and heard the accused accosting Manoj not to put his eggs stall there, Manoj replied that he would continue his eggs stall there. The accused then took out the knife from the waist and dealt knife blows on the chest and stomach of Manoj. Accused then ran away. Injured Manoj had fallen on the ground. Mahendra put Manoj in the rickshaw and took him to Panchpaoli Police Station and from there to Mayo Hospital, Nagpur.
16. It is, thus, clear from the evidence of Mahendra that when he went to eggs stall of his brother, he heard about the talk referred to above and witnessed the assault. Admittedly, according to Mahendra, he reached to his brother's stall and heard the talk referred to above. Thus, it is clear that he is not a witness to the demand of omelet by the accused, supply thereof and after consumption, refusal to pay the bill by the accused. Thereby, it cannot be said that it is an infirmity in the testimony of Chandramani as it is not the case either of Chandramani or other eye witnesses that Mahendra was present since beginning. Thus, there is no defect in the genesis of the story.
17. Shri Daga, the learned counsel for the appellant, assailed the evidence of Deepak (P.W. 2) on the ground that according to this witness, he closed his shop at 5.30 P.M. and had gone home to attend ceremony at his residence, but he did not return and therefore his evidence seems to be cooked one. Deepak (P.W. 2) runs a fodder shop and that too at a distance of 10 feet away from the eggs stall of the deceased. He specifically deposed that on 2-9-1990, he closed his shop at about 5.30 P.M. and had gone to attend the ceremony at his house. Again he returned at 6 P.M. and opened his shop. According to this witness, at about 7 P.M., deceased Manoj and accused were cutting jokes at the shop of Manoj. The boy (Chandramani) was on the eggs stall of deceased Manoj. Accused and deceased Manoj raised their voices and, therefore, people gathered. He too came out of his shop. He saw the accused dealing stab blows by knife on the person of Manoj. Manoj started running away but he fell on the ground. He was then taken to the hospital. The defence submitted that there was no demand of omlet, consumption thereof as also the demand of the bill. Similarly, it is submitted that accused did not ask deceased Manoj not to continue his eggs stall there, in view of the evidence of Deepak. P.W. 2 was all the while in his shop. His attention was attracted when both raised voices and people gathered. Therefore, prior to raising of voices, he took dialogues between two as cutting jokes. It is not the case of the prosecution that witness Deepak was attentive to the talk which took place between deceased and appellant, prior to raising of voices too. He was in his shop, naturally, must be engrossed in his work thus, it cannot be treated as contradictory evidence. There was no reason for him to depose against the appellant/accused. The learned trial Judge has, according to us, rightly believed his testimony.
18. Mahendra (P.W. 1) the elder brother of deceased, has deposed that after purchasing vegetable, while returning home by the road where the eggs stall of his brother Manoj was installed, he saw Manoj, Chandramani as also the accused at the eggs stall of deceased Manoj. When he went there, he heard the accused saying deceased Manoj that he should not put his eggs stall there. Manoj replied that he would put the eggs stall there. On this the accused took out the knife from the waist and dealt two stab blows on the chest and stomach of Manoj. The deceased started running, but fell on the ground. He was unable to speak. He put injured Manoj in rickshaw and took him to Panchpaoli Police Station and thereafter to Mayo Hospital, Nagpur. Sudam (P.W. 6) deposed that on 2-9-1990, he returned from his avocation of rickshaw-pulling at 5 P.M. and thereafter had gone to Kamal Talkies area on his bicycle to purchase vegetables. After purchasing vegetables, while he was returning home at about 6.45 P.M., he found that an altercation was going on between the eggs vendor and the accused at the eggs stall. Number of persons had gathered there. Sudam further deposed that accused took out the knife from his waist, dealt two stab blows, one on the left side chest and another on the stomach of the deceased and ran away into his shop 'New Saoji Bhojnalaya'. The eggs vendor on receiving the blows had run for some distance and then fell on the ground. One person lifted injured eggs vendor, put him in the rickshaw and took to the Police Station. One small boy at the eggs stall who was frightened, told him to take him to the house of injured. Sudam told the boy that he was not knowing the residence of the injured. The boy told him that he would take him to the house of the injured. Thus, he gave ride to the boy on his bicycle and had taken him to the house of the injured and thereafter he had gone to his house. Sudam identified the boy as Chandramani in the Court. It needs mention that Sudam was not knowing either injured Manoj or Chandramani. However, in his deposition, he specifically stated that the accused was known to him as he had earlier seen him sitting in the 'New Saoji Bhojnalaya'.
19. Shri Daga, the learned counsel for the appellant/accused, submitted that Mahendra (P.W. 1) and Sudam (P.W. 6) both are the chance witnesses. Their evidence is suspicious as their presence at the scene is doubtful. On giving conscious consideration, we do not find any substance in the submission. Mahendra (P.W. 1) being elder brother of deceased Manoj, it was but natural for him to visit the eggs stall of his brother which was on his way to home, after purchasing vegetables from Kamal Talkies Chowk, and on seeing the altercation between his brother and the accused, to pacify the matter. Similarly, we do not find any unnaturally or abnormal conduct in the witness Sudam (P.W. 6) who too while returning home from Kamal Talkies area, found the gathering and altercation between the deceased and the accused at the eggs stall of the deceased. As a natural conduct, he too joined the gathering and witnessed the assault. It is but natural to have slight insignificant portion in the evidence because the altercation and the incident was witnessed from different places and different angles. In fact, Sudam (P.W. 6) is an independent witness. One cannot expect mathematical accuracy in the evidence of different witnesses who witnessed the incident from different places and different angles. The serious offences like murder are not committed with previous notice to the witness, soliciting their presence. Therefore, merely because Sudam (P.W. 6) happened to go by the side of the place of incident, found gathering, haunted and witnessed the altercation between the accused and the deceased, as also the assault by the accused on the deceased, it cannot be said by any stretch of imagination that he is a chance witness. Even if by chance, he happened to be present at the place of incident and witnessed the assault, he being an independent witness, having no infirmity in his evidence, his evidence cannot be brushed aside. In fact, Sudam is not interested in either of the parties. He was not knowing the deceased and the boy Chandramani. How to appreciate the evidence of an independent witness even describing as 'Chance witness', has been discussed by Their Lordships of the Supreme Court in the case of Rana Pratap v. State of Haryana, : 1983CriLJ1272 . Their Lordships observed as under :
'In a murder trial by describing the independent witnesses as 'chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses', even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.
20. Shri Daga, the learned counsel for the appellant/accused, vehemently submitted that considering the facts and circumstances of the case and particularly, there being no pre-plan, it was a simple wordy quarrel which developed in the altercation and the accused dealt the blows on the spur of moment, in a heat of passion, and, therefore, it will not attract the provisions of Section 300 of I.P.C., punishable under section 302 of I.P.C. as entire incident took place in a casual manner while cutting jokes. Sudden quarrel developed and in that the knife blows were dealt. Thereby it is a case of culpable homicide not amounting to murder and consequently it comes under exception IV of Section 300 I.P.C. Exception IV reads as under :
'Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.'
To bring the case under exception IV to Section 300 I.P.C., the following ingredients must be satisfied : (1) The murder must be committed without premeditation; (2) It must be the outcome of a sudden fight; (3) In a heat of passion (4) Upon a sudden quarrel; (5) Without the offender having taken undue advantage (6) Acted in a cruel or unusual manner. Considering the evidence led by the prosecution, there was no fight in the instant case. No circumstance has been brought to our notice to say that the accused had assaulted because he developed the heat of passion. On the contrary, the evidence is specific that on demand of the bill of omelet the accused declined to pay and, therefore, there was an altercation. Further in the altercation, the accused asked the deceased Manoj not to continue the business at that place and on his refusal, the accused took out the knife from the waist and dealt blows on the person of Manoj. Admittedly, the deceased Manoj was unarmed. It is, thus, clear that there is nothing on record to show that any specific overt act or word exchanged, developed the heat of passion of the accused. Though the deceased Manoj was unarmed, the accused took undue advantage and dealt the knife blows on the chest and stomach of Manoj in a cruel manner. To carry a weapon in a concealed manner is not an usual phenomenon. The accused carried the weapon in his waist which suggests his intention. 'Intention' is the state of mind of a person with reference to certain consequence which results from his willed movement and action. To carry weapon in the waist and then to pick-up quarrel with the deceased and taking undue advantage, to inflict fatal blows on the person of Manoj, indicates an intention of the accused to cause death of the deceased Manoj and with this intention in mind, he caused injuries to the deceased which were sufficient in the ordinary course of nature to cause death as deposed by all the three doctors referred to above.
21. In the case of Bhagwan Munjaji Pawade v. State of Maharashtra, : 1979CriLJ49 . Their Lordships held that as there was no sudden fight or fight as such in that the deceased was unarmed and there was no exchange of blows and the deceased did not cause any injury to the accused or co-accused the accused was not entitled either to the benefit of exception 2 or exception 4 of Section 300 I.P.C. The observations made by Their Lordships are as under :
'.... The deceased was unarmed. Exception 2 can have no application. It is true that some of the conditions for the applicability of Exception 4 to S. 300 exist here, but not all. The quarrel had broken out suddenly, but there was no sudden fight between the deceased and the appellant. 'Fight' postulates a bilateral transaction in which blows are exchanged. The deceased was unarmed. He did not cause any injury to the appellant or his companions. Furthermore, no less than three fatal injuries were inflicted by the appellant with an axe, which is a formidable weapon on the unarmed victim. Appellant is, therefore, not entitled to the benefit of Exception 4, either.'
In the case of Mohammed Mytheen Shahul Hameed v. The State of Kerala, : 1980CriLJ192 . Their Lordships considered the circumstances when the accused is not entitled to claim benefit of Exceptions 2 and 4 to Section 300 of I.P.C. Their Lordships held as under :
'Held that the facts established in the case unmistakably showed that the appellant was the aggressor and had inflicted the dagger injuries on the back and chest of the deceased maliciously and vindictively and not in self-defence. As no right of self-defence ever accrued to the appellant Exception II to Section 300 had no application. Similarly, Exception IV to S. 300 was not attracted to the case as there was no mutual exchange of blows between the deceased, who was unarmed and the appellant and the assault on the deceased by the appellant was deliberate and pressed with determination when the victim was fleeing for his life. The appellant was therefore rightly convicted under S. 302 and sentenced to life imprisonment.'
In view of the evidence discussed above and the observations made by their Lordships of the Supreme court, according to us, this is not a fit case to attract Exception IV to Section 300 I.P.C.
22. In the case of Kikar Singh v. State of Rajasthan, : 1993CriLJ3255 Lordships of the Supreme Court opined when the provisions of Clause thirdly of Section 300 I.P.C. are attracted. The Lordships observed as under :
'It is not necessary that death must be inevitable or in all circumstances the injury inflicted must cause death. If the probability of death is very great the requirement of clause third is satisfied. If there is probability in a less degree of death ensuing from the act committed the finding should be of culpable homicide not amounting to murder. The emphasis is on sufficiency of injury to cause death. A judge must always try to find whether the bodily injury inflicted was that which the accused intended to inflict. The intention must be gathered from a careful examination of all the facts and circumstances in a given case. The citus at which the injury was inflicted, nature of the injury, weapon used, force with which it was used are all relevant facts.'
According to us, the appellant inflicted fatal blow i.e. first injury on the chest which is proved to be sufficient in the ordinary course of nature to cause death and thus, we held that the offence is one of murder and the appellant was rightly convicted and sentenced to imprisonment for life under Section 302 of I.P.C.
23. In the result, the instant appeal is dismissed. The conviction and sentence awarded to the appellant/accused by the Additional Sessions Judge, Nagpur, for the offence punishable under Section 302 of I.P.C. is hereby confirmed.
24. Appeal dismissed.